McClellan v. Pye , 1911 Tex. App. LEXIS 31 ( 1911 )

HIGGINS, J.

On April 18, 1905, plaintiff in error executed and delivered to Ira P. Jones, trustee, for the use and benefit of defendant in error, a deed of trust covering lots 9 and 10 and adjoining halves .of lots 8 and 11 in block S72 in the city of Houston, to secure the payment of certain moneys evidenced by 49 notes. One of said notes became due every month,” and all bore interest at the rate of 8 per cent, per annum, payable monthly, and containing a clause providing that failure to pay one should mature the entire series when the first note became due and default was made in its payment. The entire series was declared due and the property was sold on August 1, 1005, by the trustee and purchased by defendant in error. In 1907 plaintiff in error filed an action of trespass to try title to recover the property, in which case final judgment was rendered against him and no appeal taken. The present suit was filed June 10, 1910, by plaintiff in error, praying that he he permitted to redeem the premises from the deed of trust and, in the alternative, asking damages if it should appear that the defendant in error had disposed of the property so that the same could not be redeemed. A demurrer was sustained to that portion of the petition praying for the recovery of damages, upon the ground that recovery of damages was barred by tbe statute of limitation. In bar of tbe action, tbe defendant in error pleaded res judicata based upon tbe judgment rendered in above-mentioned action of trespass to try title, and also pleaded tbe four years’ statute of limitation.

[1] Tbe first assignment of error complains of tbe court’s action in sustaining tbe demurrer to tbe prayer of tbe petition for damages. If any right to .redeem tbe premises ever existed, tbe cause of action arose in 1905, and plaintiff in error’s right to redeem tbe premises, or to recover damages in lieu of redeeming, was barred by tbe four years’ statute of limitation, and trial court did not err in sustaining tbe demurrer.

[2] Tbe remaining assignments of error are also overruled because tbe action was barred by tbe said statute, and be was also precluded from recovering upon any theory by tbe defendant’s plea of res judicata.

Tbe judgment is affirmed.